Ombudsman rejects Boko’s DISS case
- Tells Boko that he cannot probe Magosi’s corruption and security “stunts”
- Okays Magosi’s salary increase and absolves Masisi of wrongdoing
- Agrees that Magosi should perform his duties without political pressure
The Ombudsman, Augustine Makgonatsotlhe, has thrown out a petition by the leader of the Umbrella for Democratic Change (UDC) Duma Boko to investigate the Director of the Directorate of Intelligence and Security Services (DISS) Peter Magosi for corruption, maladministration and abuse of office in relation to Magosi’s alleged involvement in the ruling party activities.
In his verdict on the matter, the Ombudsman agreed with Boko on the need for Magosi to act within the confines of the constitution and without political pressure but added that there is a need to test the allegations against the provisions of Section 3 (1) of the Ombudsman Act by determining if in doing what he did in the way that he did it, Magosi was performing his administrative functions or security functions.
Boko had complained that Magosi has overstepped his security functions and crossed into the political landscape, adding that his overzealous bodyguard behaviour, seemingly to impress his political appointer, has left many Batswana puzzled.
The Ombudsman responded that “in the instant case, it has not been shown that the Director General was exercising administrative functions as envisaged by Section 3 (1) of the Act when he conducted himself in a manner you deem overzealous bodyguard behaviour and overstepping his security functions”.
Makgonatsotlhe said he is precluded by Sections 4 (b) of the Ombudsman Act from investigating matters affecting the security of the state. Furthermore, Section 31 of the Intelligence and Security Service Act provides for a tribunal “to receive complaints from a person who feels aggrieved by an act or omission of an officer of the Directorate”.
He said Section 3 (2) of the Ombudsman Act excludes his jurisdiction in such matters. The section provides that “except as provided in this act, the Ombudsman shall not conduct an investigation into any action in respect of which the person aggrieved has or had a right of appeal, reference, or review to or before a tribunal constituted under any law in force in Botswana”.
Regarding the complaint about the recent increase in Magosi’s salary, Makgonatsotlhe stated that such appears to be consistent with the provisions of Sections 6 (1) of the Intelligence and Security Service Act which authorises the President to appoint the director general “on such terms and conditions as the President may, on the recommendation of the council, determine”.
“Beyond that, Sections 4 (d) of the Ombudsman Act precludes from our jurisdiction actions taken in respect of appointments to offices in the service of the Government of Botswana, or appointments made by or with the approval of the President or any minister. The salary attached to a particular position or the adjustment thereof is, in our view, an action in respect of appointment to that position, and the Director General’s position being one in the service of the Botswana Government, this issue falls outside our jurisdiction,” the Ombudsman wrote.
Makgonatsotlhe noted that matters of corruption do not fall under the remit of the Ombudsman.“Consequently we cannot accede to your request that we investigate allegations of corruption by the Director General or any other person for that matter,” he responded. Magosi has been promoted from his F1 Scale to F0 effective from April this year.
The Ombudsman concluded that the issues raised by Boko do not raise a prima facie case of maladministration in so far as they do not arise from the performance of the Director General’s maladministration duties. “The complaint, therefore, does not commend itself to the Ombudsman’s intervention, hence I would proceed under Section 3 (4) of the Ombudsman Act to excise my discretion not to initiate an investigation in this matter,” Makgonatsotlhe concluded.
Boko had also complained that Magosi has been acting out of his organisation’s mandate, “making newspaper headlines boasting that he is collecting Government debts, tax and making pronouncements on prosecutorial matters ,” Boko wrote. “In this excited behaviour he is usurping the functions of the Botswana Unified Revenue Services (BURS) and Directorate of Public Prosecutions (DPP) which are supposedly independent.
“His behaviour is in contravention of these Acts because he is dabbling in politics. His leadership style borders on bullying and intimidating opponents of the President, to ingratiate himself. In the midst of these unprofessional acts, the Director General’s salary was increased by the President clearly as an indication of reward for his behaviour, which we find disturbing.”